I recently wrote a blog entitled “Can Apartment Owners Restrict Gun Possession?” that identified varying measures by apartment owners to restrict the possession of guns on their properties. The piece referred to various state statutes, administrative law rulings and state attorney general opinions touching on the validity of such measures.

In the end, neither the second amendment to the U.S. Constitution nor any state laws in support of gun rights override the right of private parties to contract with each other. Furthermore, reasonable gun restrictions would likely be covered by the provisions in the Uniform Residential Landlord Tenant and Tenant Act (“URLTA”) that permit landlords to adopt rules or regulations the purpose of which is to promote the convenience, safety, peace or welfare of the tenants or preserve the landlord’s property from abusive use .

The same would clearly apply to the adoption by apartment communities of smoke-free policies. IREM’s Journal of Property Management recently included a column entitled “face-off/buzz piece” contrasting sides of the debate on whether there should be city or state laws prohibiting smoking in apartment communities. The opponent of the ban proposal speaks to the inconvenience of prohibiting residents from smoking in their residences and the relatively minor cost of treating a residence with residual smoke odors. The countervailing argument of the proponent speaks to the practical benefits of prohibiting smoking within apartments: better indoor air quality, reduction in maintenance costs (he contends that damage from smoking can be “irreparable”), and reduction of fire risk. He takes the position that while local or state laws prohibiting smoking in apartments is “unchartered territory”, it’s generally a good idea.

I doubt that we will see such laws soon. Like gun restrictions, the restriction of smoking is a highly charged political issue, but I believe it is a matter of contract between landlord and tenant. The same provision of the URLTA empowering landlords to adopt rules and regulations promoting the “… safety, peace or welfare of the tenants…” or “preserve the landlord’s property from abusive use”, would seem to encompass smoking restrictions. In the end, it is a matter of agreement between private parties and a question of what the market will bear. If landlords want to risk some market resistance, isn’t it their prerogative? After all, with the decreasing tolerance of smoking, it may be a marketing advantage.